I am David Greer and I am here representing the Dayton Ohio Board of Education.

The paramount issue that we present involves the proper fashioning of an equitable remedy in a school desegregation case.

The basic principle is clear.

The nature of the violation determines the scope of the remedy.

Our concern is with the application of that principle to a case where the finder of the facts determined that only limited segregatory practices exist as opposed to a dual system either mandated or under the keys standards.

Our contention is that a system wide racial balance remedy as was mandated here by the Sixth Circuit cannot be justified equitably or constitutionally by such factual findings.

Most of the factual contentions that were raised by the plaintiffs in this action were resolved after an extended trial, some five years ago in favor or the Board of Education.

Three findings were determined by the finder of the facts that constitutes what it termed a cumulative violation of the constitution.

Those three findings were a condition of racial imbalance in the schools of the Dayton system, the rescission of resolutions that had been enacted by a lame duck school board, and the existence of optional zones between certain schools in the system.

The Trial Courts specifically found and in its opinion after the first remand in reviewing the keys decision, which came up while this case was in process, specifically found that at no time, did the defendant maintained a dual system of education and specifically found that this case does not involve actions taken on a school by school basis, but rather segregatory practices.

The first finding that was made on this case, a condition of racial imbalance does not amount to a violation of the constitution of this country.

The finding with respect to rescission of resolutions I think it is clear under the ruling of the Sixth Circuit in the law in this area can only be considered a violation of a constitutional duty to the extent that a constitutional duty to act existed at the time the original resolutions were adapted.

Unknown Speaker: Do I understand that you are saying, the finding that there was a lack of racial balance that is the schools if not each reflect the total composition of the community is an erroneous finding.

You are attacking that finding are you?

Mr. David C. Greer: No, Your Honor, I do not mean to be understood.

There is no question it was conceded at the outset that there is racial imbalance in the schools in the Dayton system.

The issue is that the racial --

Unknown Speaker: You are attacking the conclusion that close from was from that finding, namely the constitutional violation?

Mr. David C. Greer: And it is clear under the case law that it is not a constitutional violation unless that condition exists because of intentional segregatory acts of the school board and the finding in this case was simply that there was a condition of racial imbalance and that it was consistent with the disbursement of the population in the Dayton area.

In other words, the evidence referred to actual census tracks as to where the populations where located and that Trial Court specifically found that the racial imbalance that existed in the Dayton Schools reflected exactly what the residential racial imbalance in the community was.

I would also point out in this regard; the court’s findings and they were facts that were as indisputable as the racial imbalance in the schools that the boundaries of the various schools in this area had seen no modifications to amount to anything for a period of some 20 years before the suit was filed.

And that as the population in the Dayton area moved so changed the percentages of black to white students in the various schools serving the residential areas.

What the point that I want to make with regard to the three findings in this case is that there is only one of those findings that is standing alone could be considered a violation of the equal protection clause of the constitution.

The cracks or the keystone of the findings of fact in this case was the finding with respect to optional zones.

Small areas between two schools where a student living in the area would have an option of going to either of those two schools.

The findings of fact here were those optional areas and there were some 150 of them at one point in the history of the school were generally placed there because of the choice of walking one more block to school as opposed to going over railroad tracks or wolf creek or what have you.

The court did find and mentioned four out of all these optional zones that may have had, I think was the court’s phrase, some racial significance at the time of their creation.

The court found as a fact that the majority of these zones had no racial significance as the time of their creation and it further found that none of the elementary school optional zones had any racial significance of any kind at the time this lawsuit was filed.

That left three of the four optional zones mentioned by the court as having any racial significance at the time of the filing of this lawsuit and as set forth in our brief and I will not try to go through all the factual arguments here or the factual findings, it is clear that the effect of these three zones which were high school optional zones was limited and minimal.

The reason we are here before you this afternoon is that these factual findings have triggered off a system wide remedy in the Dayton School District by which each and every school in the system is required to reflect the system wide racial balance plus or minus 15%.

In the brief which we filed, we were confident enough of our position to state not only that the remedy here must be rewritten, but also that the only way that the plaintiffs would hope to avoid a rewriting of the remedy would be to rewrite the factual findings and I submit that is exactly what this court has been requested to do in the various briefs that had been filed in opposition to our position.

The plaintiff’s brief tacitly concedes our position.

It does not attempt to justify the system wide remedy on the basis of the facts that were found.

First it attempts to stretch the factual findings beyond their evidentiary content and second, the challenges, the failure of the Trial Court to adapt the plaintiff’s position on the other factual issue is presented.

The Justice Department’s brief in a more straightforward manner explicitly and expressly concedes our position.

The brief says and I have to quote to you because if I have to quote somebody, I like to quote my adversary when I can.

Justice Byron R. White: If the brief was not the fact?

Mr. David C. Greer: The brief agrees with us that the three part cumulative violation that the court found would not support the remedy that --

Justice Byron R. White: And the agreement ends there, I think.

Mr. David C. Greer: Then we get down to the point of rewriting the facts Mr. Justice White, and I would proposed to the court four separate reasons why you should not succumb to the temptation if it is a temptation to adapt that kind of an argument establish a whole new brand of law in this area and in essence what I think these four reasons should satisfy you, I hope is that you should accept the facts as found by the trier of the facts and adjust the remedy rather than accepting the remedy and adjusting the findings of fact.

First, I would submit that the facts in this case, including the fact of a non-dual system and either the statutory or the key sense of the term have been determined as the law provides they should be determined and no appeal was taken by the plaintiffs from the Trial Court’s findings as to a non-dual system.

Secondly, I would point out that there was not finding of intentionally segregative school board actions in a significant or meaningful portion of the school system and that there was therefore no basis for shifting the school authorities the burden of proving that racially imbalance schools within the system were not the result of intentionally segregative actions.

Justice Byron R. White: What if we disagree with you on that?

Mr. David C. Greer: If you disagree with me I think you.

Justice Byron R. White: Only on that particular point.

Mr. David C. Greer: On that particular point?

Justice Byron R. White: Then what?

Mr. David C. Greer: That is the question of was it in a meaningful or significant section of the school then there would be a shift of burden and I think my response to that would be clear and that is really my third plight here, and that is that even if the burden were shifted, the school board did not sit silent through this three or four weeks of hearings.

We did present evidence on each of these issues that was presented and the facts in the record, support a finding that even if the keys presumption had been called into effect of the presumption is after all a rebuttable presumption and the Trial Court found that the arguments that were made should be rejected and that the racial imbalance in the schools in the system was not the result of intentional segregatory actions by the school board.

Justice Byron R. White: Would you think the United States challenges the rules of law applied by the District Court or the Court of Appeals?

Mr. David C. Greer: As I understand, the Justice Department’s position which I must confess I received in the fifth day of a trial that I am presently engaged in, in Cincinnati, after completely agreeing with all my position in this case, they would ask this court to look to the record making all new finding of fact, which is contrary to the findings of fact that has been made, taking historical practices that exist or historical situations that happened in 1926 or in 1933 and then by some leap of logic presumed by that there was in fact a dual system in Dayton as of 1954.

This gets into a whole lot of factual arguments which has been made and I might find out that today, we did file with the clerk to supplement the record the brief that we have filed in the Sixth Circuit on our initial appeal in this case where we went through those facts.

Unknown Speaker: You meant three of your reasons, did you get to your report?

Mr. David C. Greer: I have not gotten to it, but I will do that right now, Your Honor.

The fourth reason and I think this is as good reason as the other three is that if the remedial goal in a suit of this nature is as this court stated in Milliken to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct.

A system wide remedy is inappropriate whereas here in Dayton, the evidence establishes that the racial composition of the schools reflected the changing racial composition of the neighborhoods that were serve by those schools and the attendance zones and boundaries of these schools met with no significant change over the 20 years that elapsed before the suit was filed.

I submit to this court and anybody else who wants to ask me that there would have been no difference in the composition of the schools in the Dayton School system at the time this lawsuit was filed, regardless of how any act in 1926 or practice in 1933 or finding a fact in this case with regard to optional zones is characterized.

Just to be specific on that point, the schools in the Dayton system as of 1954 when the Brown case was decided consisted of four schools that were composed of an entirely black student population.

24 schools that had a mixed population of black and white students, and 21 of white schools.

During the 20 years that elapsed before the filing of this suit were no significant boundary changes and the schools needs various mixtures were affected only by population change.

There is a little pocket in the eastside of Dayton, the Washington Elementary School serves that area and the composition of the student body in that school has been somewhere around 23 or so percent consistently through this entire 20-year period.

Other schools during these 20 years were entirely white in their student bodies at one point or mixed at one point, and as population shifted, the composition of the school shifted.

So that by the end of the period, certain schools were predominantly black and you can list them.

So that this is my fourth point that I would present to the court that if the purpose of a remedy in this kind of a case is to restore a condition that would have exited but for constitutional violations, there is no basis here for a system wide remedy.

Now, I am sure the court is going to have a lot of questions for me as well as for my opponents, those are our four main answers to what has been an effort as I see it to try to persuade this court to rewrite the facts.

I do not think that is a request that should be accepted by this court.

We are not here, it seems to me to determine the correctness of the Trial Court’s findings.

What we are here to determine is to whether the findings of fact that had been made in this case support the remedy that has been imposed.

It seems to me what the Department of Justice and what the plaintiffs in this case are asking is that this court designate itself and the Circuit Court of Appeals as fact finding commissions in every school desegregation case that is filed, that I submit is not a proper appellate function and that is, I submit the job of the prior of the facts the Trial Court who has the opportunity to develop those facts on a witness by witness basis through the pressure of cross examination and through examination of the witnesses.

Now, as far as the historical facts that are attempted to be put together out of a cold record in the brief that was filed by Department of Justice.

I would submit that those facts simply leave great logical gaps that were filled in at the trial of this case.

There has not been any instance cited to this court because there is none available for citation where a student in the Dayton School system was ever excluded from any school because of his grades.

There was an instance back in 1926 when a group of students at an Elementary School Garfield were taught in a separate building behind the main school that was a subject of a suit in 1926 and that practice was eliminated and that practice existed and was eliminated some four generations of students before this case was filed.

Unknown Speaker: Mr. Greer, you told us at the outset the three facts on which the District Court found a cumulative constitutional violation.

First, the fact that the schools were racially imbalanced, the individual schools, two, the rescission of the resolution and three, the optional zones.

And you submitted to us that the first and the second were not in themselves constitutional violations.

What did the Court of Appeals of the Sixth Circuit say about the first and the second?

Mr. David C. Greer: They said essentially the same thing.

They affirmed the finding that there was a cumulative violation.

Unknown Speaker: How can it be cumulative if there is only one?

Mr. David C. Greer: Your Honor, I am lost in that somatic problem myself, but I gathered that the sense in which they use the term cumulative is that the innocuous fact of racial imbalance coupled with an optional zone that could aggravate that racial imbalance between two schools when looked at together or cumulatively could be considered a constitutional violation.

I think that is the sense in which the court meant to use that term.

I think that makes some sense.

Unknown Speaker: And you concede, you tell me if I am mistaken in my understanding.

I understood you concede that the optional zones at least some of them, with respect to some of the schools, some of high schools could validly be found then violated the Equal Protection Clause of Fourteenth Amendment.

Mr. David C. Greer: We are not challenging the findings of the trier of the fact which is the law, in the law.

That is true.

Our position is and we have set it forth in the brief there was only one of this that amounted to anything at all if you take the tables that are attached in the appendix as to the populations of these various schools.

You will find even that optional zone which was between Roosevelt and Colonel White High Schools and existed essentially unchanged during this period, except for the addition of two city blocks at one point affected something like ½ of 1% or 1% of the black students in the entire system.

Unknown Speaker: So you do not concede that the optional zones which concededly violated the Equal Protection Clause resulted in this racial imbalance.

Mr. David C. Greer: We certainly do not concede but I think I have fly in the face of the record to suggest it Your Honor.

I have reserve some time for my rebuttal if I may and I would like to take that time now.

I just like to say one more thing with respect to the optional zones.

The finding of intent here which we concede and then do not argue was that while most of these optional zones were placed there out of perfectly honest and neutral considerations.

For example, if you even take the one that is the problem, the one between Roosevelt and Colonel White, we have got the Dayton Tire & Rubber Co. who we have got wolf creek, we have got railroad tracks, and we had it one time this Dayton stockyards that presented some problem for children going to the closer of those two schools.

But the court found that in determining the optional zones, the school board did take into account feelings of the community whether they want it or not and in that respect, some insidious intent may have crept into the decision in these few zones.

And certainly, what we do not concede is that there was any meaningful or substantial portion of this district effect.

Unknown Speaker: Well that would affect at the most in your submission the racial makeup of the student body in no more than two high schools.

Mr. David C. Greer: Three high schools.

Unknown Speaker: Three high schools.

Mr. David C. Greer: Because there is also the High School Kiser involved in another one of the optional zones where there was a finding.

Unknown Speaker: There is a Dunbar in there somewhere in there?

Mr. David C. Greer: Dunbar was an optional school which was not involved in this finding.

Dunbar bar at the time of the suit was filed had its own district just like any attendance, boundary, just like any other school.

There was a time when Dunbar was an optional school in the sense that any black student living anywhere in the city could have his choice of attending either of the school in his area or Dunbar High School.

Unknown Speaker: When did that practice cease?

Mr. David C. Greer: 1962, I believe it was.

Unknown Speaker: How many high schools are there in the Dayton School District?

Mr. David C. Greer: There are 10 at present.

Justice William H. Rehnquist: What is the population of Greater Dayton?

Does the record --

Mr. David C. Greer: I will probably be assassinated by the Chamber of Commerce if I concede that the population of Dayton changes by whatever means that they use to assess it whether it be the 90-minute marker or the exact boundaries of the city.

The school population is at this relevant time set forth in the appendix and I will have to check it or use my brains that is either table here to give it to you precisely.

Justice William H. Rehnquist: Where you served with the copy of the motion for leave to file a brief amicus?

Mr. David C. Greer: I received it in the middle of an opening statement last Friday Your Honor, yes and have no objection to their filing of amicus brief.

Justice William H. Rehnquist: It is late you know.

Mr. David C. Greer: I realized it is late and I have not had a chance to --

Justice William H. Rehnquist: So you do not oppose this?

Mr. David C. Greer: No, I do not oppose it.

Chief Justice Warren E. Burger: Mr. Lucas.

Argument of Louis R. Lucas

Mr. Louis R. Lucas: Mr. Chief Justice, may it please the court.

Answering first the question Mr. Justice Rehnquist, I believe the population at least the biggest we had in our brief is 250,000.

Unknown Speaker: Does that go outside of Montgomery County at all or is it well within Montgomery County?

Mr. Louis R. Lucas: School district does go beyond the limits of the city, but not beyond the limits of the county.

Unknown Speaker: And there is 250,000 population figure you gave us was what for the school population or the total population of the school district or the population of the city?

Mr. Louis R. Lucas: That is the City of Dayton.

Unknown Speaker: From all ages and sexes?

Mr. Louis R. Lucas: That is correct, the pupil population is 45,000 people, slightly less than 15% of them were black.

Our argument to this court is really in two basic parts.

There was in Dayton, Ohio in 1954, had the jury segregated system, a dual system and that pre-round dual system was never dismantled until the district court finally ordered a system wide plan of non degradation.

Unknown Speaker: The District Court find to the contrary?

I found that there was not a dual system I thought, as a fact.

Mr. Louis R. Lucas: Well, I think that the district courts, definition of dual is probably relevant and its definition is as suggested by the defendants and we have referred to it in our brief what they suggested was in order to have a dual system, it had to be required by state law.

Unknown Speaker: Well, did not the district court find that there was not a dual system?

Mr. Louis R. Lucas: I think in that context, yes he did Your Honor and I referred --

Unknown Speaker: Is not broader than that?

Mr. Louis R. Lucas: Yes sir, I think that the --

Unknown Speaker: It did not, they really find that the dual system had been dismantled?

Mr. Louis R. Lucas: Your Honor, I think you have to distinguish here between the facts that we are in dispute and called for the district court to resolve and the facts which were not disputed and which during this lengthy trial, that has been referred to, were not contested in anyway.

There was no evidence offered to the contrary and if I may just quickly summarize --

Justice Lewis F. Powell: May I just ask quickly Mr. Lucas?

Dayton does not object to the filing of this brief amicus by the United States, do you?

Mr. Louis R. Lucas: No, Your Honor, we do not.

In Dayton in 1954, you had five schools to 100% black.

There was the Garfield School, which we detailed, its establishment and which was not controverted at the trial.

Garfield started out with the black, white students in a backroom and then in an annex in back when the black population grew, the Garfield School was converted.

Whites were signed out and the faculty was flip-flopped in classic style so that it was all black.

During that period of time, while there were black students in separate rooms in the Garfield school are in the annex and black teachers were not permitted to teach white children.

That was the expressed stated policy which was a change from the previous policy to Dayton Board, which was not to hire blacks.

That too, is not in dispute.

Justice Lewis F. Powell: What year was this?

Mr. Louis R. Lucas: That school was established in 1912, I believe and it continued forward Your Honor.

Unknown Speaker: And you are speaking as of 1954.

Mr. Louis R. Lucas: As of 1954, that is correct.

Unknown Speaker: So your response to Mr. Justice Powell is 1954.

Mr. Louis R. Lucas: It was a 100% black, but it is our -- go forward.

The Will School is again another school where the black population increased, where black teachers were not permitted to teach white children and when a sufficient number of black students was in that school so that it became crowded in terms of black.

Enrolment the white students were signed out.

Unknown Speaker: Can you give us some focus us to time and also as to when these particular events took place?

Mr. Louis R. Lucas: Garfield and -- well they are in the brief Your Honor, I am sorry I do not have the hand along that.

Unknown Speaker: Do you speak of 1954 or 1975?

Mr. Louis R. Lucas: I am saying these schools existed in 1954, but how they got to be black schools is detailed in the record and not controverted.

There was no testimony that the flip-flopped of faculty did not take place.

There was no testimony that the black annex out in back did not exist and the testimony by live witnesses who were in those schools when Ms. Lewis troy testified she had been in the system as a teacher for 40 years and never permitted to teach a white child.

Unknown Speaker: How many courts have intervened since then, that is in this case.

You have had three district court opinions, had there been?

Mr. Louis R. Lucas: Well, include all the orders; I suppose four or five orders that are in the record.

There are two really opinions and the third ruling on remedy after the second remand from the Court of Appeals.

What I am saying to the court is that these matters were not in dispute.

His counsel states at the time of Brown, there were the black schools.

Now in Wagaman, this school in 1945 was built in conjunction with the Desoto Bass Housing Project which was a black housing project.

The Dunbar School which has been discussed was in existence as a high school through 1962.

Now it served more than the traditional high school grades, various times it served grade 7 through 12.

That school had a black faculty assigned to it and now the Dayton’s rule, black teachers could not teach white children, so it was a citywide dual overlapping and again that was not contested and it set forth in the opinion of the District Court.

Unknown Speaker: Was that true at the time this lawsuit was brought?

Mr. Louis R. Lucas: That was true at the time of the lawsuit was brought with respect to a new school in Dunbar, that the old Dunbar School was closed in 1962 changed its name and became McFarland and at that time, two of the previous black elementary schools in that area were closed and those two schools were closed.

They were assigned to the McFarland, which was the old Dunbar High School, a new Dunbar --

Unknown Speaker: This suit was brought when, 1971?

Mr. Louis R. Lucas: Yes, that is correct Your Honor.

Unknown Speaker: And at that time -- just want to be sure, are you telling us that at that time this suit was initiated, Dayton was operating in a dual school system in terms of racial segregation?

Mr. Louis R. Lucas: That is clearly our position, Your Honor.

Unknown Speaker: The District Court found that it was not, did not it?

Mr. Louis R. Lucas: I think the district court used the term dual in terms of mandate and segregation you have to consider the position taken by the defendants and I think the understanding of the District Court of that word dualism.

The defendants argued in the court of appeals in the first appeal that the brown one duty applied only to those school districts where a dual system was compelled or authorized by statute and has the lack of ability where a statutory dual system has never existed.

That was the context that the district court was talking about dualism.

Unknown Speaker: Well was it, are you telling us that 1971, at the time this litigation was commenced that the black teachers were not allowed to teach white children?

Mr. Louis R. Lucas: No, Your Honor, that was changed as a result of action taken by HEW where it vies the district that they had racially motivated assignment of teachers and staff; and an agreement was ultimately worked out and resulted in reassignment of faculty.

Unknown Speaker: Here is, as we have been told as I understood it in reading the briefs that there were three facts found as accumulated constitutional violations.

One, racial imbalance in the schools as de facto; two, the rescission of a resolution by the school board, and three, certain optional attendance zones and in some of the high schools.

But those were the three, you are telling us, do I misunderstand it that there were really in fact many, many more.

Mr. Louis R. Lucas: I like there were many more facts found and I think some of those facts go to make up the pattern of racially identifiable schools that the District Court noted and --

Unknown Speaker: But they were racially identifiable schools in terms of some of them being maybe all black or predominantly black and others all white or predominantly white, that is not argued about, I understand.

Mr. Louis R. Lucas: Well, it is our position I think the records are undisputed that those schools as of 1954 --

Unknown Speaker: No, were talking about this litigation.

Mr. Louis R. Lucas: At the time of trial.

Your Honor, I think both in 1954 and we had a trial.

Unknown Speaker: Well, let us just confine ourselves to this lawsuit.

Lots of things went on and --

Mr. Louis R. Lucas: I think this lawsuit at the time of trial we had unremedied pre 1954 violations and a dual system which both the duty on the school board from that point forward to disestablished the segregation that was expound at that time, we have continuing --

Unknown Speaker: But the District Court did find and yet Justice Stewart has asked you this twice and I still do not have your answer to it.

The District Court did find that Dayton did not have a dual system, did it not?

You are perfectly free to qualify your answer or respond anyway but surely you can give a yes or no answer.

Mr. Louis R. Lucas: Yes, Your Honor, the District Court did use those words and I think that that was it meant as I have already explained Mr. Justice Stewart and I did not mean to --

Unknown Speaker: What I understood you to say before, what was meant was a statutorily required dual system?

I thought what I said was no dual system, that is what they were talking about.

Mr. Louis R. Lucas: That is correct, Your Honor.

Unknown Speaker: Is that what you meant?

Mr. Louis R. Lucas: That is exactly what I mean and I think that is exactly what the District Court was talking about, since that was the dispute.

Unknown Speaker: But there was in fact a dual you were saying.

Mr. Louis R. Lucas: That is correct.

Unknown Speaker: You said it was dual school system but it was not required by any statute or any law of Ohio.

Is that it?

Mr. Louis R. Lucas: That is precisely.

Unknown Speaker: Well, there is no law since have ever, but certainly not since before the Civil War.

Mr. Louis R. Lucas: Then our position and that is why we did not understand the argument was constantly presented by the defendants that Brown Standards did not apply and could not refer to any of the Brown Cases in analyzing the facts in Dayton and applying the legal standard to those facts because there was no statutory dual system.

We do not see that that is the law or correct application of it.

If I may, the 1954 in addition to Dunbar as a citywide school, you have the Miami Chapel School, which was established in 1953.

It is undisputed in this record that 1953, the Miami Chapel School was an all black school.

So that you have a discreet un-contradicted policy of racial assignment of faculties that applied to every school in the system, that was system wide segregation.

We had a system wide high school, a dual overlapping high school zone and the classic predation of blacks at Dunbar and also in 1952, reorganization, which is characterized in this record as the Westside Reorganization, there you had an expanding black population.

In order to provide school space for that population, the defendants contracted the boundaries of the original black schools that made them tighter boxes, locked them in to those boxes and expanded the boundaries of the periphery schools, which already have substantial black enrolments inward to give them a larger share of that black population.

At the same time, they cancelled their open transfer policy, which had permitted whites to get out of any situation where they did not want to stay, but instead substituted for it a series of optional attendance zones around the Westside stools on the white side of the periphery allowing whites to get out of those schools.

Simultaneously with that and in the context of their policy on faculty, they began assigning black teachers to those schools, so that those schools eventually became identified as the new black schools.

Unknown Speaker: And when was this?

Mr. Louis R. Lucas: This happened in 1952, Your Honor.

Unknown Speaker: Are not we really concern about what the facts were in 1971, when this lawsuit was brought?

Mr. Louis R. Lucas: Your Honor, the facts in 1971 are a product of what happened in the establishment of the central black core.

Unknown Speaker: Well, least of this as a product of his heritage and of his environment whether it would be a human being or a societal entity, but we are concerned here with what the facts were in 1971 when this litigation was initiated, are we not?

Mr. Louis R. Lucas: That is correct and at the time of trial Your Honor, the Dayton Board had just ended as of 71 the racial assignment, racially motivated the assignment of faculty to schools, however, the effects of that racially motivated assignment still persisted because schools were still identified as white or black.

At the time of trial, we have 69 schools, 49 of those schools were 90% of more black or white, there are 21 black schools and 28 white schools.

Unknown Speaker: Does not your black and white school argument depend on an underlying finding that there was a dual school system?

Mr. Louis R. Lucas: I think what is required is the finding that there was a pattern of the jury segregation and at the time of Brown or thereafter, or that the segregation that existed pre Brown, at the time of Brown and throughout this period has detailed and far more detailed than I can in this argument.

Whether or not that affected substantially the districts so as to shift the burdens of it to go forward and demonstrate that the segregation is not its responsibility and I do not think it meant that burden.

Unknown Speaker: Was there anything unconstitutional as such I would say in 1926 about the school board’s segregating on the basis of race?

Mr. Louis R. Lucas: Yes, Your Honor there is because if it were not then in 1954, no school district can in the south which had segregated its schools pursuant to state law are in no pursuant to its own will.

It was not defaulted at that same school remained in all black school in 1971 as it did when this --

Unknown Speaker: Well, but the law is requiring attendance of only one race to school would certainly be struck down by Brown.

Mr. Louis R. Lucas: That is correct.

That the fact that it was done in 1929 whether it was done by the action of the school board in segregating that school in assigning students in a manner which created forcibly the segregation in that school would not be excused by the fact that it was done in 1929 if the effects of the original assignment persisted today.

Unknown Speaker: But you said then the act in 1929 was illegal and the school board in fact should have foreseen that 25 years later, Brown would have overruled Plessy.

Mr. Louis R. Lucas: I think that the action of the School Board in segregating students is illegal, but it was done in 1929 or 1971 or 1977.

I think that is the teaching of Brown.

I think that is the application of the Fourteenth Amendment.

Otherwise, everybody who had acted before Brown is excused.

I would like to detail if I can since I think it is particularly important in effects the district in the system wide way the facts with respect to faculty in the changing policy.

The 1952, Board changed its policy only slightly, but did so in such a way I think to further maximize the racial insult of that policy.

What it said was is that some whites reassigned to Negro schools where they previously were only Negro teachers, but there would be no assignments of whites to those schools against their will.

Said that Negro teachers would be mixed in white schools, only where the whites evidence that they are “ready” to accept Negro teachers.

That policy persisted in Dayton effectively until the 1969 agreement with HEW which went into effect in 1971.

That is what system wide historic policy that is not disputed was intentional affects the ratio identifiability of every school in the system, it affects the kinds of decisions that were made and it is the exact environment for segregation that this court has talked about in Swann.

The government argues and I think it tracks the argument in our brief that there are a number of undisputed facts in the record.

In addition to the three specifics, whether they would be stated in summary form or be limited to just the words as they appear and I think you can, I think district judge was talking cumulatively and I think the Court of Appeals was speaking in general terms, not as precisely as this court might like or we might like, but nevertheless plaintiff.

Unknown Speaker: Do you agree with the government’s brief?

Mr. Louis R. Lucas: Yes, we do Your Honor.

Unknown Speaker: So are you disagree with the Court of Appeals?

Mr. Louis R. Lucas: We think that the Court of Appeals was not as precise as it might have done and all we think the Court of Appeals.

Unknown Speaker: What do you mean by that?

Do you agree with it or do not you?

Mr. Louis R. Lucas: Well, I think that the Court of Appeals decision is --

Unknown Speaker: Well, I will put it this way, do you disagree with the Court of Appeals as much the government does?

Mr. Louis R. Lucas: Not as much, Your Honor because we do not read them --

Unknown Speaker: When you do not agree with the government?

Mr. Louis R. Lucas: I think it is a matter of emphasis, Your Honor.

We agreed basically with the government’s position.

What we do not agree with is that the Sixth Circuit misunderstood the facts and the record that was before them, the arguments that was presented, and thought that they were only ruling the ratio and balance.

Unknown Speaker: For you to win here, do you have to convince us that the Court of Appeals misunderstood the facts?

Mr. Louis R. Lucas: I do not think I have to convince this court that the Court of Appeals misunderstood the facts.

I think for us to prevail, we have to show that the judgments and not all the language or all the reasoning of the Court of Appeals that the judgments they made are supported by the record, the undisputed evidence and the facts that were found by all of the courts below.

I think the Court of Appeals has reversed the District Court and so far as the District Court thought that dual meant state imposed, or that they was not the jury segregation because the Court of Appeals spelled it out.

They thought clearly enough when they said look, when we were talking about segregation , we meant the jury segregation, they said that on the segregation.

Unknown Speaker: You are disagree with the Court of Appeals to some extent?

You think they apply the wrong legal standard?

Mr. Louis R. Lucas: I think they did not articulate the legal standard or the full basis for their opinion as clearly as they might and I think that is what the government is saying.

Unknown Speaker: Well, let us assume for the moment that the Court of Appeals did not articulate the right legal standard or view the facts in the light of the right legal standard.

If we agreed with you, would not it normally we say what the right legal standard is and remand?

Mr. Louis R. Lucas: I think that the District Court --

Unknown Speaker: Would not we normally do that?

Mr. Louis R. Lucas: I think that normally, the Court of Appeals has applied the wrong legal standard thus vacate and remanded for applications correctly will stand in.

I do not think that is what happened, I think what the Court of Appeals did was fail to spell out in detail all of the basis --

Unknown Speaker: You say they did apply the right legal standard but they did not spell out how they did it.

Mr. Louis R. Lucas: They did not articulate it as clearly.

Unknown Speaker: And they did not understand the facts very well, I think.

Mr. Louis R. Lucas: Well, I think they understood the facts very well.

I think they have felt that it was not necessary to spell out everything that was admitted in request for admissions or everything that the parties were not in dispute about and therefore required no adversary findings by any court.

I think that the record overwhelmingly supports it, and as the government points out, you are not going to get a stronger set of facts in a non-jury state if you will upon which District Court conveys a judgment.

I think that the Court of Appeals has rendered the right decision and I think that any arguments that sort of plan is a racial balance plan falls on the face of the facts.

We have the terminology problems, the District Court, or the Court of Appeals may have had, they do not support a finding that there was racial balance argued.

It seems to be a problem if a district judge puts in his opinion a number today other than the page numbers at the bottom of the page then he is accused of watering racial balance and I do not know what they can do because a balance is between a 1 and 100%, and if they do not give some guidance to the school boards, the school boards come back and ask for them.

They ask for some outlines, some parameters and the figures used here are not pulled out of the air, they are not some professes theory, they are based on the facts and the system and incidentally, the plan actually ultimately ordered by the District Court is quite similar to the plan adapted by the regional board before the new board came in and cancelled it.

This is five years of litigation to get the plan that the Dayton Board have to studying itself and Board Members admitted the violations and the admissions are not out of whole clause.

There is a basis in fact for those admissions and for us to say that has no effect, no probative value is to say that because a new board comes in then whatever the old board admitted, whatever statements they made, whatever policies they play, have no effect and I think this court’s opinions teaches otherwise.

Unknown Speaker: Mr. Lucas, is this decree of the District Court -- who was it, Judge Rubin?

Mr. Louis R. Lucas: Judge Rubin, yes sir.

Unknown Speaker: Provided that they are not being more than 115% deviation in any school.

Mr. Louis R. Lucas: Plus or minus, it is really 1/3, 2/3 range and the actual operation of the plan ended up with the broader range and we specified these statistics.

I think it is 44% either way.

But as I say, 1 to 100 is a range too.

Unknown Speaker: It certainly is but basically it was a 15% plus or minus in any school.

Mr. Louis R. Lucas: That was the target, the guideline to start with to work from.

Unknown Speaker: And as of a particular precise date or time, there was no continuing.

Mr. Louis R. Lucas: That is correct as a matter of fact, the Court of Appeals cautioned against any such interpretation even though they found no basis for the defendants suggestion that court had ordered some sort of annual adjustments are constant supervision by Federal Court.

And Judge Rubin was very careful to tell the board if you have got any changes you want to make, you have got any problems, you have got any schools, you think should not be included in this plan, you have any practical problems, you come and show me.

It was no such sensitive motions that are resided in the record most of which the court went along with.

The only thing he did not go along with was allowing the board to delay these segregation another three years who face it in and I think that is entirely proper and consistent with the record.

Unknown Speaker: The decree did not provide or envision periodic review to maintain this sort of school population.

Mr. Louis R. Lucas: I would say that the District Court in this case was extraordinarily careful to say he did not want to be superintendent.

He went out of his way to tell the defendants that they were going to run the schools and that he specifically said that he did no require them to maintain something now and forever or for his lifetime.

There is no such problem in this case and I think he needs suggestion based on this record is just out of board.

It just does not fit the facts.

Unknown Speaker: Do you think the racial balance 15% plus or minus is compatible with the standards laid down in Swann and reasserted in the first Milliken v. Bradley case?

Mr. Louis R. Lucas: I think the starting point which is all it is, is appropriate.

It is no different as we compare it to the starting point in Swann and actually it permits and resulted in a broader range of assignments.

Unknown Speaker: When you say racial balance, 15% plus or minus, that does not sound like the starting point that was dealt within Swann.

That sounds like the targets, does it not?

Mr. Louis R. Lucas: Well, I think we have basically a question of somatic.

The District Court did not say, if it ever gets beyond this point, you have to come back to 15%, he just said look, this is a guideline, this is a starting point and as a matter of fact in his last two opinions, he specifically refers to the Swann language.

It is not a case, he simply was not aware of it.

He specifically referred to the Swann language and cites it in a lengthy footnote I believe in the second opinion.

So he knew this court’s rule and I think he faithfully adhered to it and the working out of the plan is really the best proof and I think that is what this court said in Swann.

I think this court said, if we thought that the court ordered an exact ratio, then we would strike it down and I think that is proper.

I said, we look and see what happen and what the district judge has done and let us look at reality.

This is a desegregated school system.

It is by no means racially balanced.

The facts are before the court and I think that the district judge is not in anyway suggesting some sort of annual reviews or fix adherence to a rigid racial ratio.

Unknown Speaker: Now, let us go back to Swann a minute and Swann as I recall the figures at least 71:29 and at the earliest stages of the litigation, this was identified as the problem.

In the Swann, opinion the court said that if we thought he had said there is a target to achieve 71:29 that being the ratio or the population of the entire school system, we would reverse if there is no constitutional requirements to do that.

Now is that relieved when you say 71:29 that you can deviate 15%?

Mr. Louis R. Lucas: I think all that district judge is really saying Your Honor, and is candid the way as possible and I think the parties understood it this way, is, look, if you get in the range you are going to be presumptively okay.

You get outside of that you have got a problem what have you, what he was trying to do was eliminate a pattern that substantially disproportionate schools.

And if you are talking about disproportion of schools rising out of constitutional violation then you have to have some measuring stick, and every school board I might add Your Honor (Inaudible) Swann.

So they can have a target for their planning.

Now, when you talk about working it out with buildings, with different capacities, with different enrolments and different grade levels, it never comes out that way.

We say in our brief what we have is not racial balance.

We have typical desegregation and it is working in Dayton.

There are no headlines about Dayton.

I think the school board has done a good job in trying to make it work and there are an awful lot of people in that community with the commitment to making it work and that is why you did not read about it in the headline.

You did no have a lot of political posturing and posing.

I think there is enough criticisms of school boards and when they do it wrong, it need not to be said, need not to be said by plaintiffs when they do it right as they finally did here.

Chief Justice Warren E. Burger: Do you have something further, you have a few minutes, six minutes left.

Rebuttal of David C. Greer

Mr. David C. Greer: Thank you.

Unknown Speaker: The optional zones have sometimes been referred to as a freedom of choice policy.

In the early years after Brown as I recall that policy was thought to be compatible with the constitution.

Do you recall when the Court of Appeals held for the first time that the policy was not valid and if you do, can you relate that to the creation of the optional zones involved in this case?

Unknown Speaker: I wish that I could and specifically I cannot, it has been a factor that has been involved in a number of cases the Detroit case comes to mind although it was merely one.

There were much more serious situations found there.

Unknown Speaker: Excuse me, I thought the Green was placed.

Unknown Speaker: Thank you, right -- I think you are correct.

Unknown Speaker: I think Green was the first case of this court but my question was directed to the total field’s level.

Mr. David C. Greer: I cannot take you back past Green, I am sorry.

Unknown Speaker: Do you know whether any of these optional zones were created after Green was handed down in 1968?

Mr. David C. Greer: No, these were all prior to that time.

A few points that I would like to touch upon that I think are responsive to points that were raised in Mr. Lucas’ argument.

First of all, to be precise the date the suit was filed was in April of 1972 rather than a 1971.

In fairness too, the finder of the facts in this case, I would like to have it clear on the record as to what his finding was with regard to a dual system.

I think there was some question raised as to whether he had some mental confusion and was thinking of dual systems solely in the conducts of a statutory mandated dual system.

I think you will find that it is clearly not the case and I would refer you to pages 75 and 77 of the Appendix where he specifically talks in one paragraph about a mandated dual system in the statutory sense and then goes on in another paragraph to talk about what we are talking about is activities that were segregative and that at no time, was there a dual system of education maintained, and on page 77 he again distinguishes, we do not deal with a mandated dual system and we do not deal with actions taken on the school by school basis, i.e. a keys type.

Unknown Speaker: Where are you now 77, and 78?

Mr. David C. Greer: Page 77 of the first volume of the appendix in the third paragraph.

Now as to the situations that were cited as to Garfield and Willard you will find that the dates there are 1926 and of 1933 I believe it is.

As far as assignment of black staffs, those events did occur at these schools after the schools had become black in their composition as far as the student composition was concerned, those events were 1936 for Garfield, 1936 for Willard and 1945 for Wagaman.

Long, long before this and as far as the assignment of faculty is concerned that had nothing at all to do as the plaintiff’s own expert Dr. Green testified with the community perception of the schools and of course all occurred several generations prior to the filing of this suit.

The policy is the teachers changed in 1950 and white teachers began to be assigned to black or mixed schools.

There was a whole change in this policy until the year before the suit was filed.

The faculty and the entire Dayton school system was balanced in a system wide ratio basis in all of the schools and a year before the suit was filed.

I do not have time, I realized to go step by step through the intent.

I would encapsulate it with Voltaire's (ph) axioms that history can be defined as a bag of tricks played by the dead upon the living.

There was no trace of any of these practices at the time this suit was filed nor if we go back and inquire into intent as far as these various practice were concerned, was there any insidious intent at the time the practices occurred nor did any of them result any exclusion of any children from any school because of their race?

Unknown Speaker: Mr. Greer, the District Court’s decree has been effectuated and is now operative, is it?

Mr. David C. Greer: It is in effect.

Unknown Speaker: In other words, there was no stay in this case.

Mr. David C. Greer: No stay was granted.

Unknown Speaker: And what was the date of the decree?

Mr. David C. Greer: The decree was dated last March.

I believe it is the date and then affirmed by the Sixth Circuit in June.

Unknown Speaker: So this is the first school year which has been effectuated.

Mr. David C. Greer: And I think Mr. Lucas is correct that the community here has done a commendable job.

I do not think that is necessarily any reason to say that this plan is justified by the --

Unknown Speaker: Oh certainly not a reason for you to lose your case.

Unknown Speaker: Mr. Geer, precisely what relief do you ask?

Mr. David C. Greer: The relief that I ask in this case is that is I think I stated on the last page of my brief, I think at this point, this case should be dismissed that the violations that were found to have been occurred have been corrected.

There are no optional zones in this system.

The schools that were affected by those zones have either been eliminated or they have been structured so that they reflect the system wide racial balance.

I think the school board should be free at this point to decide what additional programs they should retain, or reject, or modify in their attempt to make this a fine school system.